JUDGMENT

Darling S.M.

1. On the 6th August, I936, Muhammad Idris Khan presented an application u/s 4 of the Encumbered Estates Act, claiming to be a landlord within the meaning of the Act by virtue of paying and revenue to the amount of Rs. 13.l3.0, on which the local rate would be at least Re. 1: extracts from the khewat for 1344 F. were attached to the application. On the same day without making any enquiry the Assistant Collector acting with the powers of a Collector passed an order u/s 6 and directed that it be forwarded to the Special Judge: the order was actually forwarded on the 14th idem. Subsequently on the objections lodged by two creditors it transpired that the appplicant was not a landlord within the definition of Clause (g), with the proviso attached thereto, of Section 2 of the Act: the landed property in question had been acquired since the passing of the Act. By the decision of our predecessor in the Agra case of Seth Bidhi Chand v. Lala Karori Mal decided on the 7th August, 1936 (1936) 1936 AWR 826, it is essential that, anyone who wishes to benefit by the provisions of the Encumbered Estates Act must have been a landlord when that Act was passed. Accordingly by his subsequent order, dated the 8th October, 1936, the Assistant Collector cancelled his former order of the 6th August, 1936, and rejected the application of Muhammad Idris Khan. The latter comes to the Board in appeal u/s 45 of the Encumbered Estates Act.

2. This appeal was argued at Bareilly on the 21st November. Orders were not passed on that day because I wished to discuss the case with my colleague at Lucknow along with another case from Agra: a short order was therefore passed to the effect that judgment would be delivered after the decision of the Agra case on the 4th December. I undertook to give the parties a further opportunity for appearing before me at my next visit at Bareilly in January, should anything new transpire either as a result of discussion with my colleague or at the hearing of the other appeal at Agra. During the interval I have had the advantage of a discussion with my colleague at Lucknow: the Agra case was decided on the 4th instant: nothing new has transpired: accordingly orders are now passed in the present case.

3. In the penultimate paragraph of the judgment delivered by our predecessors in the case of Seth Bidhi Chand v. Lala Karori Mal (1936) 1936 AWR 826 to which reference has already been made, Mr. Drake-Brockman laid down that the Collector is competent to cancel an order u/s 6 if facts afterwards come to his knowledge which satisfy him that that order is incorrect, at least so long as the Special Judge has not opened actual proceedings u/s 8: to this dictum we cannot agree. If a Collector, or an Assistant Collector acting with the powers of a Collector, comes to the conclusion that he has passed an order u/s 6 through a misapprehension, and if he be of opinion on further consideration that that order should not have been passed, then the Court should refer the case to the Board in revision u/s 46 of the Act with a recommendation that his order be set aside. In the present case the Assistant Collector should have taken this course. Recently the Local Government has amended Rule 6 of the Rules framed u/s 54 of the Act: by this rule as now amended all proceedings under the Act are to be governed by the provisions of the Code of Civil Procedure, so far as they are applicable and not inconsistent with the provisions of the Act. This means that a Collector can now review his order in accordance with Rule 1, Order XLVII of the Code of Civil Procedure. In the present case the Assistant Collector was not reviewing his order under the Code of Civil Procedure: on the strength of the ictum of our predecessors he cancelled his original order u/s 6: in our opinion this is not the correct way to proceed.

4. Muhammad Idris Khan was not a landlord within the meaning of Clause (g) of Section 2 when the Act was passed: he is therefore n